September 16, 2011

As detailed in this MSNBC rport, the "U.S. Supreme Court Thursday halted the execution of a black man convicted of a double murder in Texas 16 years ago after his lawyers contended his sentence was unfair because of a question asked about race during his trial." Here is more:

Duane Buck, 48, was spared from lethal injection when the justices, without comment, said they would review an appeal in his case. Two appeals, both related to a psychologist's testimony that black people were more likely to commit violence, were before the court. One was granted. The other denied.

"Praise the Lord!" Buck told Texas Department of Criminal Justice spokesman Jason Clark. "God is worthy to be praised. God's mercy triumphs over judgment. "I feel good."... The reprieve came nearly two hours into a six-hour window when Buck could have been taken to the death chamber....

Buck's case is one of six convictions that the state's then-top attorney reviewed in 2000 and said needed to be reopened because of the racially charged statements made during the sentencing phase of the trial. A psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released....

Buck was convicted in 1997 of capital murder in connection with the deaths of Debra Gardner and Kenneth Butler, who were shot to death with a shotgun one night as they were hanging out with friends at Gardner's house....

Buck's guilt is not being questioned, but his lawyers say the jury was unfairly influenced and that he should receive a new sentencing hearing. The Texas Board of Pardons and Paroles ... had denied Buck's clemency request Wednesday, and the 5th U.S. Circuit Court of Appeals subsequently rejected his appeal.

Buck's lawyers contend the case was "tainted by considerations of race" after psychologist Walter Quijano testified in response to a question from lead prosecutor Joan Huffman that black criminals are more likely to be violent again in the future. Whether or not someone could be a continuing threat to society is one of three questions Texas jurors must consider when deciding on a death sentence.

Critically, the Supreme Court's stay and order in this case (available here) does not include a grant of certiorari, it just gives the Justices more time to decide if they should grant cert.

Comments

More false procedure from the cappi di tutti cappi of the biggest criminal syndicate in history, in total control of the US government. There is an infinite amount of misstatements in any case, that can be used as a pretext to generate more appellate job hours.

There is no question as to his guilt. There is also no question as to the truthfulness of the psychologist statement, since black criminals are 6 times more likely to kill, mostly black victims. The Supreme Court has devalued the black victim for decades resulting in an excess of 5000 murders of black people relative to their fraction in the population. Each year, the lawyer allows an excess of unnecessary 5000 black murder victims. The KKK lynched 5000 people over 100 years. Both had total immunity from prosecution from collaborationist, racist prosecutors, and judges.

(1) "I tell you nay, but except ye repent, ye shall all likewise perish". (Without repentance, there is no forgiveness. Did you not kill and leave wounded souls as well?: "REPENT ye, and believe the gospel" (Jesus)).

(2) Law, grace, & truth run concurrently like some sentences. You may be enamored with "God's MERCY", but if someone were to molest your niece, you'd favor God's JUDGMENT.

This is an absolutely ridiculous stay, and the Supreme Court should be thoroughly ashamed of itself. First off, this guy's habeas petition was denied by SCOTUS in April 2010. That's almost a year and a half ago. So now, SCOTUS decides to stay an execution based on a last-minute appeal (which could have been filed much much earlier in the process)? This flies in the face of unanimous Supreme Court caselaw and the purpose of AEDPA. Why is the Supreme Court rewarding these last-minute stay applications? Why is the Supreme Court offending the dignity of states, who have every reason to believe that they should be able to enforce their criminal judgments after three rounds of appeals.

Next time, if there's no stay in place by 6:00 PM, Texas should go ahead and execute.

adamkis, just as a reality check, whatever you think is "probably" true, Buck is definitely NOT reading this in prison. Also, I'm curious: What makes you certain Buck hasn't "repented"? If the thief on the cross was eligible for redemption, why not Mr. Buck? And if he has earnestly "repented," will you then retract your call for biblical justice on the same grounds you avowed it?

Yall's argument is really with Texas Sen. John Cornyn, who was the AG who said Buck's case should be reopened, and Justice Scalia who authored the stay order. But I'm sure somebody will explain to me why it's the fault of "liberals" that the execution didn't happen.

Grits, Keller was certainly justified in telling that to Dow. Last I checked, judges weren't in the business of helping litigants perfect their appeals.

As for Cornyn, he really has nothing to do with this. At least five Justices on SCOTUS have decided that their going to hold these IAC type cases (i.e., I had no chance to appeal IAC at trial b/c my state PCR counsel was ineffective) until later. So it really isn't Scalia either. He dissented in one of these.

This is not about SCOTUS looking at Quijano's statement afresh.

Posted by: federalist | Sep 16, 2011 11:17:54 AM

Just sayin' federalist, if it were up to Texas courts we wouldn't give 'em till 6.

Don't know why you absolve Cornyn - he took the same position as Buck's lawyers on the question, just earlier in the process.

Because Cornyn didn't influence the process. Cornyn's stance on this is pathetically weak. This guy doesn't deserve relief, and Cornyn is undercutting Perry. Cornyn is a little squishy on judges too.

6 is the time for execution. They can't do it earlier, but if there's no stay in place at 6, then the execution should go forward. The gnashing of teeth would really be hilarious to watch. I know I'd have the balls to do it.

Posted by: federalist | Sep 16, 2011 1:11:59 PM

Greetz4br@kefist:

I'll surely retract if I'm wrong about something; I'm not calling for "biblical justice" based on a failure of Buck to repent.

"""""Thief on the cross"""""
Good on you.
After earlier reviling Jesus, one malefactor rebuked the other and noted that their "condemnations" were just & "the due reward of our deeds".

This repentant man subsequently called Jesus "Lord" and asked him to {U CAN READ IT goto Lk23, Mk16).

---By the way---The Greek word ||lestes|| is a tad vague but probably meant a violent robber who killed or intended to kill a victim, since the Romans would not have crucified for larceny, I reckon.

As it were, the "thief" was forgiven & promised eternal life by Jesus but still executed, with no objection from those present.

"To secure a capital punishment conviction in Texas, prosecutors must prove through compelling evidence, that Buck posed a serious threat to society if he were ever to talk free. They did this based on testimony of a psychologist who testified that Buck's race (African American) made him more likely to commit crimes in the future."

The Supreme Court is absolutely right that this is racist. There was no question of his guilt because he was convicted -- but everyone convicted of a capital offense does not receive the death penalty unless it can be proven that they will commit crimes in the future. This is generally based on their behavior, their responses to psychological questions or tests, what they have done in the past, their lack of remorse, etc. etc. Race is not a barometer for a person's future actions. Supremacy Claus, just because you believe that Black people are more likely to commit criminal actions does not make it a scientific fact, it only proves that you have a psychological problem that causes you to justify your racism by making yourself believe that Blacks are somehow inferior or less moral than you are. You lose that argument by the sheer fact that racism in itself is immoral, and usually practiced by people with inferior intelligence.

Posted by: msyoung | Sep 16, 2011 5:47:57 PM

Correction: If he were ever to "walk" free.

Posted by: msyoung | Sep 16, 2011 5:49:40 PM

My question is why this wasn't raised in the first federal habeas petition to the 5th Circuit and then for certiorari to SCOTUS.

Posted by: DaveP | Sep 16, 2011 7:39:26 PM

msyoung --

"[E]veryone convicted of a capital offense does not receive the death penalty unless it can be proven that they will commit crimes in the future."

Would you mind telling us where you get this stuff? Yesterday it was the 250 death row inmates who had falsely confessed but had been cleared by DNA evidence. Today it's this.

You really have no clue of what you're talking about. There is not a single jurisdiction in the country that requires proof that a killer will commit future crimes as a condition of imposing the death penalty. Nor will there ever be, since there is no such thing as a fact about the future.

Sure, the prospect of future dangerousness in often a factor in capital sentencing, but that is vastly different from what you said.

Again, where are you getting this stuff?

Posted by: Bill Otis | Sep 16, 2011 11:21:15 PM

@Gritsforbreakfast
"federalist, here in Texas we close at 5"
Except for the judges who keep later hours, something Dow knew and ignored for some reason.

Posted by: MikeinCT | Sep 16, 2011 11:59:11 PM

This is a direct quote: Prosecutors firmly established Buck's guilt, but to secure a capital punishment conviction in Texas they needed to prove "future dangerousness"—that is, provide compelling evidence that Buck posed a serious threat to society if he were ever to walk free. They did so in part with the testimony of a psychologist, Dr. Walter Quijano, who testified that Buck's race (he's African American) made him more likely to commit crimes in the future (Quijano answered in the affirmative to the question of whether "the race factor, [being] black, increases the future dangerousness for various complicated reasons.")

Bill Otis - perhaps you cannot put it together, but if to "secure a capital punishment conviction" they "needed to prove future dangerousness" which is "provide compelling evidence that Buck posed a serious threat to society if he were ever to walk free," then couldn't a thinking person deduce from that that not all murder convictions result in a death penalty. If all murder convictions resulted in death penalty, then there would be no need to prove anything in order to secure a "capital punishment conviction". If murder in itself is a capital crime, and proof of "future dangerousness" is needed in order to secure capital punishment conviction, then does that not mean that if no proof of future dangerousness was presented, then the murder conviction would result in life imprisonment? And the fact that you don't or can't comprehend this reasoning unless it is spelled out for you, does not make me a liar, it merely makes you somewhat anal and possibly a little slow.

Posted by: msyoung | Sep 17, 2011 12:05:03 AM

@msyoung
I think his problem is with the language you used.

'future dangerousness' does not equal 'proven that they will commit crimes in the future'

It's a matter of there being a high probability, not a 100 percent guarantee.

Posted by: MikeinCT | Sep 17, 2011 1:25:53 AM

You folks have no sense of humor. MikeinCT, before the "We close at 5" case, the court did not reveal which judge was the duty judge and lawyers had to call the clerk. When Dow did, the clerk went to Keller instead of the duty judge and she told Dow to buzz off. Under the rules established later he'd have known who was staying late to receive the filing, but not when the incident occurred.

adamkis, true, the thief on the cross was "still executed, with no objection from those present." However the relevant passage on Christ's attitude toward execution comes from the capital case described in John 8:4-11. Let me know how that fits into your gloating exegesis.

federalist, Cornyn's determination that the testimony was improper is the reason all this is happening in the first place, and occurred years ago when he was AG. He's not trying to undercut Perry and in fact has said nothing recently about the case to my knowledge. His comments on the impropriety of the testimony were from a decade ago. As is often the case, your assumptions on that tell us more about you than Mr. Cornyn.

As for anything about an execution being "hilarious to watch," that's where you lose me. It's one thing to support capital punishment. It's quite another to do it with the attitude a gleeful teenager who's thrilled to take Daddy's car for a spin. I actually support the death penalty in certain instances, but all the over the top cheerleading (and literal cheering, at the recent GOP debate) is beyond sick. Sometimes when you have to put down a dog it's the right thing to do. But those who gleefully, adamantly WANT to do it and take pleasure from the event are sadistic jerks.

Thanks grits, I thought Cornyn had said something recently about this particular case. In any event, this was a defense witness, something which was not the case in the other cases. The stay is ridiculous. He's had his habeas appeal--and then the Supreme Court, once again, rewards a last-minute appeal.

As for Dow, he knew of the LI claims for years--yet he chose to wait until the last minute, getting his client killed. When you play games like that, sometimes things fall through. Judges can close their courts in accordance with state law, and judges have lives too. Unless innocence was an issue, the difference between my dinner being warm or cold would matter to me more than some murderer's last-minute appeal. Courts should ask a simple question--could this have been filed much earlier in the process--if the answer is yes, then dismiss the action.

Posted by: federalist | Sep 17, 2011 9:17:53 AM

Federalist you are wrong when you say "this was a defense witness *something which was not the case in the other cases*" In fact, in two of the other six cases that Cornyn confessed error, Walter Quijano was a defense witness. Those were the cases of Carl Blue and John Alba.

Posted by: dm | Sep 17, 2011 10:53:33 AM

msyoung --

MikeinCT has laid it out for you, but I'll do so as well, since it seems to take some effort.

What you said was (empahsis added): "[E]veryone convicted of a capital offense does not receive the death penalty UNLESS IT CAN BE PROVEN THAT THEY WILL COMMIT CRIMES IN THE FUTURE."

That is point-blank false. No such requirement exists anywhere in the country.

You eventually admitted that you simply made up the "fact" that 250 death row inmates falsely confessed only to be cleared later by DNA testing. You did this, however, only after claiming, also falsely, that it was just a matter of your momentary inability to lay your hands on the "source." In fact, that is no source and never was.

Now it's pretty much the same deal. Your statement is false. The requirement to establish future dangerousness is a requirement only to show a reasonably serious POSSIBILITY that the defendant MIGHT commit one or more future crimes, not a requirement to PROVE that he WILL commit them. Is it really that hard for you to understand the English language?

Not that it makes a difference. You don't attempt to understand it. You choose a different path. Instead of admitting your error, you meander through a mostly nonsensical word thicket you characterize as "reasoning," and close with this: "[T]he fact that you don't or can't comprehend this reasoning unless it is spelled out for you, does not make me a liar, it merely makes you somewhat anal and possibly a little slow."

Yikes. I was hoping your admission yesterday that you fabricated the false confessions/DNA exoneration claim indicated at least a latent sense of honesty. Quickly enough, you dashed that hope. Instead, you show that you are not merely a liar, but a crude and belligerent liar.

Posted by: Bill Otis | Sep 17, 2011 11:02:38 AM

federalist, dm beat me to it on the "defense witness" angle. Look out or Bill may accuse you of lacking "a latent sense of honesty." ;)

Federalist:
You feel the Supreme Court was wrong, but they were doing their job.
The Supreme Court rules on constitutional issues. At question is not whether or not Buck murdered his girlfriend and another man,but whether the way in which his death-row eligibility was determined was constitutional. Isn't that the Supreme Court's function, or at least one of its functions? To interpret the constitution as well as determine what is or what is not constitutional, or as in this case, what is questionable as to its constitutionality? Evidently, they didn't stop the execution, they stayed it until it is determined whether using his race to determine his future dangerousness is constitutional. I know some of you think that the color of one's skin is a predictor of one's future dangerousness and there's nothing wrong with putting a man on death-row based on this. Everyone is entitled to their personal beliefs> But does the constitution uphold those beliefs?

Posted by: msyoung | Sep 17, 2011 11:23:13 AM

Grits --

"I actually support the death penalty in certain instances..."

Since the death penalty was reinstated by Gregg 35 years ago, there have been 1267 executions. I was curious if you could specify which one (or maybe two or three) of those you supported.

The reason I ask is that, if a person supports the death penalty in principle -- even with many reservations -- it would be overwhelmingly likely that, among over a thousand executions, there would have to be at least a few in which the proof of guilt was so certain, the murder or murders so cruel, the victim so helpless, and the trial so clearly free from racial taint or lawyer malfeasance, that it would pass muster.

Here's what you wrote: "The requirement to establish future dangerousness is a requirement only to show a reasonably serious POSSIBILITY that the defendant MIGHT commit one or more future crimes." (emphasis yours)

Here's what the statute says: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

Your rendering is a bit closer to the actual statute that ms.young's. But I sure hope some uncharitable nitpicker doesn't come and give you the full "Bill Otis treatment"

Posted by: dm | Sep 17, 2011 11:43:21 AM

The Texas statute also says that "The state must prove each issue submitted under Subsection (b) of this article [including the probability of future dangerousness] beyond a reasonable doubt."

Posted by: arfarf | Sep 17, 2011 12:09:49 PM

msyoung, it's more likely that they stayed the execution to evaluate whether a pending ruling in Martinez would be applicable to Buck's case. In any event, I'd love to see someone explain, with reference to existing Supreme Court caselaw, how this stay is consonant with equitable principles. We have a murderer who has had all his post-conviction and habeas appeals. Cert. was denied on his habeas case in April 2010. This is a last-minute appeal. Once again, the Supreme Court has acted in a manner inconsistent with standards it has set forth. That is a point that's not even remotely debatable.

As for Quijano being a defense witness in other cases, well, that just means that Cornyn is more of a squish than I had thought.

Posted by: federalist | Sep 17, 2011 12:32:09 PM

Bill, I'm okay with it for cases that are truly the worst of the worst - McDuff, McVeigh and other mass murderers are good examples - and also in cases where murders are committed in prison by folks who already are in for life or life-equivalent sentences.

In the former cases I think American society (certainly in the neck of the woods I'm from) basically demands the symbolism of blood sacrifice; in the latter there's no viable punishment for somebody already locked up.

I do think it's overused, prone to error, costs too much, I don't buy the deterrence arguments (besides for in-prison murders) and I don't think there's any evidence it contributes to public safety. Further, my personal view (admittedly a minority one) is that LWOP is a "harsher" punishment than death. We all will die, many of us in painful agony much worse than in the execution chamber. Not everyone is locked up in a cage their whole life.

That said, symbols are more important than they're often given credit for, the majority of the public supports it, and I'm willing to abide by the majority view. That doesn't mean I won't be critical - even for executions I support - of those who cheer on the executioner like their favorite sports team.

msyoung's "attempt to describe" the future dangerousness factor was an attempt to CHANGE it into something anyone who can speak English -- including a layman -- know's it's not.

"Your rendering is a bit closer to the actual statute that ms.young's."

My rendering, which did not purport to be a quotation, contains no substantive difference whatever from the actual statutory meaning. It's not merely "a bit closer," as you surely know.

"But I sure hope some uncharitable nitpicker doesn't come and give you the full 'Bill Otis treatment'."

The "Bill Otis treatment" being what, exactly? Insisting that people tell the truth about a supposed legal requirement for certainty they indignantly maintain exists, but actually doesn't?

Sorry, that insistence will continue.

P.S. I must have missed your chivalrous defense of msyoung's breathtaking lie that that there have been 250 death row inmates convicted because they were forced into false confessions, but later exonerated by DNA evidence.

Was that also just the product of a confused layman? Sure it was!!! Yet you had not one word to say about that whopper. Why not? Nor do you have much critical to say about the present one. Instead of criticizing the person who misreprents the statute's legal requirement, you reserve your barbs exclusively for the person who CORRECTS that misrepresentation.

What an odd set of priorities -- unless, that is, the point of the game is preserve what abolitionists view as their right to lie. Is that what it's about?

Posted by: Bill Otis | Sep 17, 2011 3:48:07 PM

Grits --

I do not "cheer on" executions. I am satisfied when justice is done, yes. I take it such satisfaction does not differentiate me from anyone on this site (while of course there are differing ideas about what justice is).

With that said, I thank you for your direct answer.

Posted by: Bill Otis | Sep 17, 2011 3:55:54 PM

i have to agree with you grits!

"As for anything about an execution being "hilarious to watch," that's where you lose me. It's one thing to support capital punishment. It's quite another to do it with the attitude a gleeful teenager who's thrilled to take Daddy's car for a spin. I actually support the death penalty in certain instances, but all the over the top cheerleading (and literal cheering, at the recent GOP debate) is beyond sick. Sometimes when you have to put down a dog it's the right thing to do. But those who gleefully, adamantly WANT to do it and take pleasure from the event are sadistic jerks."

This is just like a govt creating a soldier. You need someone who can go out and KILL others at times eyeball to eyeball. BUT you dont' want them to ENJOY IT! Once they start to enjoy killing just to be killing....it's long past time to safety take away the gun and exchange it for a RUBBER ROOM somewhere followed be a lot of theapry!

Posted by: rodsmith | Sep 17, 2011 4:43:41 PM

When have I cheered an execution?

And I'd love to see one of you libs take me up on my challenge to defend the Buck stay with respect to existing Supreme Court caselaw.

Posted by: federalist | Sep 17, 2011 8:48:37 PM

Miss Young
I wont speak like a southern black lady. Miz scarlett, great balls of fire. Feminists aré trying to humiliate us.

If you aré a civilian i have no dispute, respect your opinión, and wish you well.

If you are a feminist lawyer, please dont run away, when the facts start to fly.

I just read the 5th Circuit's opinion in this case and agree that SCOTUS should not have granted a stay. Under AEDPA, an inmate is supposed to file for a successive petition in the Court of Appeals to get permission to open a new appeal in the district court. Why aren't they following this procedure? Also, when the 5th Circuit denied the petition, AEDPA is supposed to restrict the inmate's ability to appeal to SCOTUS.

Posted by: DaveP | Sep 18, 2011 5:08:02 PM

hmm maybe the SOCUTS thinks the AEDPA needs to go BYE-BYE and is fixing to do just that since it's been used to block petitons that any reasoning person should NOT have blocked!

Posted by: rodsmith | Sep 18, 2011 11:07:18 PM

Supremacy Claus:
I have no idea what you are talking about.
Being an African American woman, I care very much about Black people being murdered both by criminals and by this broken justice system. Exactly what 5,000 Black people are you referring to, and who is murdering them, and what exactly have I said to indicate that I do not care about them? And if speaking up for my beliefs makes me a feminist, then I'll be a feminist - although I've never considered myself one. Are you a supremacist?

Posted by: msyoung | Sep 18, 2011 11:54:39 PM

rodsmith

Buck's attorneys are engaging in piecemeal litigation and purposely witheld the issue from the first habeas petition. It should be barred.

Posted by: DaveP | Sep 19, 2011 7:12:50 AM

Miss Young. If the number of murders of black people were proportional to their fraction in the population, there would be 5000 fewer murders.

There are 17,000 murders a year. There should be 1700 or 2000 murders of black people. There are 7000. That extra 5000 each year is the same number as were lynched by the KKK in 100 years of lawyer immunity. Where does it come from?

1) the destruction of the black family by feminist lawyers, and the promotion of the full time Roman Orgy lifestyle;

3) the devaluation of the black victim, kill a white, the penalty is death, kill a black, the penalty is a few years, that's if they bother to investigate and arrest a person.

The rate of antisocial personality disorder is the same across all races and cultures. That is the condition associated with repeat offending. The rate of substance abuse is actually slightly lower in black people than in whites. So you are correct, there is nothing inherent or biological predisposing black people to criminality. All the disparities have to be explained by the reactions of the feminist lawyers now controlling criminal justice policy.

Aren't you offended by that "Ms" appellation, a mockery of Southern dialect?

DaveP SCOTUS' stay is essentially lawless. There needs to be a legislative fix. This claim was strategically withheld until the last minute. And Texas didn't set a date until well after the denial of habeas.

This is why I think that Texas should abandon its policy of waiting. If it's 6pm, and there's no stay in place, the execution should proceed. Yes, everyone would flip out, but then Texas could calmly and rationally explain that there was no stay in place and that the claim was last minute.

Posted by: federalist | Sep 19, 2011 8:38:30 AM

if this is true! and the state can prove it!

"rodsmith

Buck's attorneys are engaging in piecemeal litigation and purposely witheld the issue from the first habeas petition. It should be barred.

Posted by: DaveP | Sep 19, 2011 7:12:50 AM"

It SHOULD be bared and any judge dumb enough to go along should be removed!

Posted by: rodsmith | Sep 19, 2011 2:00:07 PM

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